Keep It with the People

The Dems, the law, and the right to bear arms.

10/24/00 5:05 p.m., National Review Online. More by Kopel
on the gun issue in the 2000 election.

Today, like every day this
election season, union shop stewards all over the country told their
rank and file that Al Gore is a stronger defender of Second Amendment
rights than is George Bush. A lie? That all depends on what the
definition of "Al Gore" is.

If
by "Al Gore" you mean the Tennessee representative and first-term
senator, the shop stewards are absolutely right. Before the 1988 run
for the presidency, Gore had an impeccable pro-NRA voting record. But
after Gore decided that he could never become president without
winning the New York primary, his voting record in the Senate turned
harshly antigun. During the Democratic primaries in 2000, he even
claimed that he went into politics so he could fight for gun
control—but given his perfect NRA voting record for his first decade
and half in politics, he didn't do a very good job.

Perhaps the meaning of "Al Gore" is "the guy who's currently the
Democratic presidential nominee and trying to win pro-hunting states."
That Al Gore insists that he strongly supports the Second Amendment.

But what this month's Al Gore claims is entirely different from what
Vice President Gore and the Clinton/Gore administration have done for
the last eight years. A case in point is the Clinton/Gore
administration's continued insistence that the Second Amendment poses
no legal obstacle to the federal government confiscating every
privately owned firearm in the United States.

Arguing before the Fifth Circuit Court of Appeals this June, in the
case of
United States v. Emerson, the assistant United
States attorney said exactly that, to an incredulous three-judge
court.

Here's the exchange:

Chief Judge Garwood: "You are saying that the Second Amendment is
consistent with a position that you can take guns away from the
public? You can restrict ownership of rifles, pistols and shotguns
from all people? Is that the position of the United States?"

AUSA (attorney for the DOJ): "Yes"

Garwood: "Is it the position of the United States that persons who are
not in the National Guard are afforded no protections under the Second
Amendment?"

AUSA: "Exactly."

Although the AUSA was simply repeating a position which the
Clinton/Gore/Reno Department of Justice has supported since January
1993, the lawyer's assertion attracted an unusual amount of notice,
because the Emerson case was so closely watched by the media
and by gun rights activists.

Accordingly, the Clinton/Gore DOJ issued a statement explaining what
it believes to be the legal basis for its position. The DOJ position
letter is revealing for two distinct reasons:

First, it underscores the absurdity of Al Gore claiming to support the
Second Amendment rights of ordinary voters.

Second, the DOJ letter shows the emptiness of the claim that the
Second Amendment does not support the right of law-abiding
Americans to possess firearms.

Let's take a close look at the DOJ letter, to dissect its numerous
errors of law.

U. S. Department of Justice
Office of the Solicitor General
Solicitor General
Washington, D.C. 20530

August 22, 2000

Dear Mr. (Name Deleted):
Thank you for your letter dated August 11, 2000, in which you
question certain statements you understand to have been made by an
attorney for the United States during oral argument before the Fifth
Circuit in United States v. Emerson. Your letter states that the
attorney indicated that the United States believes "that it could
'take guns away from the public,' and 'restrict ownership of rifles,
pistols and shotguns from all people.'" You ask whether the response
of the attorney for the United States accurately reflects the
position of the Department of Justice and whether it is indeed the
government's position "that the Second Amendment of the Constitution
does not extend to the people as an individual right."

I was not present at the oral argument you reference, and I have
been informed that the court of appeals will not make the transcript
or tape of the argument available to the public (or to the
Department of Justice). I am informed, however, that counsel for the
United States in United States v. Emerson, Assistant United States
Attorney William Mateja, did indeed take the position that the
Second Amendment does not extend an individual right to keep and
bear arms.

That position is consistent with the view of the Amendment taken
both by the federal appellate courts and successive Administrations.

In
other words, the AUSA was speaking the official DOJ position when he
said that the Second Amendment is no impediment to complete gun
confiscation.

More specifically, the Supreme Court and eight United States Courts
of Appeals have considered the scope of the Second Amendment and
have uniformly rejected arguments that it extends firearms rights to
individuals independent of the collective need to ensure a
well-regulated militia. See United States v. Miller, 307 U.S. 174
(1939) (the "obvious purpose" of the Second Amendment was to
effectuate Congress's power to "call forth the Militia to execute
the Laws of the Union," not to provide an individual right to bear
arms contrary to federal law"); Cases v. United States, 131 F.2d
916, 921 (1st Cir. 1942) ("The right to keep and bear arms is not a
right conferred upon the people by the federal constitution.");
Eckert v. City of Philadelphia, 477 F.2d 610 (3rd Cir. 1973) ("It
must be remembered that the right to keep and bear arms is not a
right given by the United States Constitution."); United States v.
Johnson, 497 F.2d 548, 550 (4th Cir. 1974); United States v. Warin,
530 F.2d 103, 106-07 (6th Cir. 1976) ("We conclude that the
defendant has no private right to keep and bear arms under the
Second Amendment."); Stevens v. United States, 440 F.2d 144, 149
(6th Cir. 1971) ("There can be no serious claim to any express
constitutional right of an individual to possess a firearm.");
Ouilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir.
1982) ("The right to keep and bear handguns is not guaranteed by the
second amendment."); United States v. Hale, 978 F.2d 1016, 1019 (8th
Cir. 1992) ("The rule emerging from Miller is that, absent a showing
that the possession of a certain weapon has some relationship to the
preservation or efficiency of regulated militia, the Second
Amendment does not guarantee the right to possess the weapon.");
United States v. Tomlin, 454 F.2d 176 (9th Cir. 1972); United States
v. Swinton, 521 F.2d 1255, 1259 (10th Cir. 1975) ("There is no
absolute constitutional right of an individual to possess a
firearm.").

The Department of Justice does have a number federal appellate cases
on its side — although some of these cases simply involve the
rejection of frivolous claims by convicted felons that they have an
"absolute" right to arms. But the Department of Justice is plainly
wrong to claim that all the federal appeals courts support its
position. Consider:

Runnebaum v. Nationsbank of Maryland, N.A., 123 F.3d 156 n. 8 (4th
Cir. 1997) (en banc, plurality opinion): "Neither gathering in a
group nor carrying a firearm are one of the major life activities
under the ADA [Americans with Disabilities Act], though individuals
have the constitutional right to peaceably assemble, see U.S. Const.
amend. I; and to 'keep and bear Arms,' U.S. Const. amend. II."

United States v. Hutzell (8th Cir. July 5): "an
individual's right to keep and bear arms is constitutionally
protected, see United States v. Miller, 307 U.S. 174, 178-79
(1939)."

Thus, the Department of Justice cites the three-judge Fourth Circuit
case from 1974, but omits the en banc Fourth Circuit case from
1997. The Department of Justice cites the Eighth Circuit case from
1992, but omits the Eighth Circuit case from July 2000.

More egregious, though, is the
DOJ's claim about the Supreme Court. There are three dozen Supreme
Court cases which mention or quote the Second Amendment, and the
overwhelming weight of these cases is in favor of an individual right.

For example, in 1992's Planned Parenthood v. Casey,
Justice O'Connor, writing the opinion of the Court, analyzed the
meaning of "The full scope of the liberty guaranteed by the Due
Process Clause" of the Fourteenth Amendment. She explained that this
liberty "cannot be found in or limited by the precise terms of the
specific guarantees elsewhere provided in the Constitution. This
'liberty' is not a series of isolated points pricked out in terms of
the taking of property; the freedom of speech, press, and religion;
the right to keep and bear arms; the freedom from unreasonable
searches and seizures; and so on."

Thus, "the right to keep and bear arms" is among the "specific
guarantees elsewhere provided in the Constitution." Further, the right
to arms is placed in the middle of a list of obviously individual
rights: the protections against the taking of property, against
unreasonable searches, and against infringements of speech, press, and
religion.

In
1990 in United States v. Verdugo-Urquidez, Chief Justice
Rehnquist's opinion for the Court observed that "the people" who are
protected by the Second Amendment are the same as "the people" who are
protected by the First, Fourth, and Ninth Amendments:

"[T]he people" seems to have been a term of art employed in select
parts of the Constitution. The preamble declares that the
Constitution is ordained and established by "the People of the
United States." The Second Amendment protects "the right of the
people to keep and bear Arms," and the Ninth and Tenth Amendment
provide that certain rights and power are retained by and reserved
to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make
no law. . .abridging. . .the right of the people
peaceably to
assemble")(emphasis added); Art I, § 2, cl. 1 ("The House of
Representatives shall be composed of Members chosen every second
Year by the People of the Several States")(emphasis added).
While this textual exegesis is by no means conclusive, it suggests
that "the People" protected by the Fourth Amendment, and by the
First and Second Amendment, and to whom rights are reserved in the
Ninth and Tenth Amendments, refers to a class of persons who are
part of a national community or who have otherwise developed
sufficient connection with this country to be considered part of
that community.

The DOJ letter continues:

Thus, rather than holding that the Second Amendment protects
individual firearms rights, these courts have uniformly held that it
precludes only federal attempts to disarm, abolish, or disable the
ability to call up the organized state militia.

But, of course, the courts have not "uniformly" held any such thing.
Some lower federal courts have, while some have taken contrary
positions. The Supreme Court's Miller decision does not support
such an extreme reading. And the Supreme Court's most recent
pronouncements on the Second Amendment are thoroughly inconsistent
with the DOJ position.

The DOJ letter then attempts to bolster its legal position by pointing
to statements made by DOJ lawyers in previous years. This is rather
like an associate at Arnold & Porter trying to prove a legal point by
citing memos written years ago by Mr. Arnold or Mr. Porter. This may
work in-house, but it isn't terribly convincing to courts.

Moreover, it is notable what administrations these old statements come
from. One is from the Nixon administration, by far the most anti-gun
in U.S. history. Bill Clinton really does enjoy an occasional duck
hunt, but Richard Nixon said that guns were "an abomination." Except
for Waco, the Bureau of Alcohol, Tobacco and Firearms was far more
abusive under the Nixon administration than under any subsequent
administration. The other DOJ statement comes from one of Lyndon
Johnson's attorneys general, testifying in support of a Democratic
gun-control bill:

Similarly, almost three decades ago, the Department of Justice's
Office of Legal Counsel explained:

The language of the Second Amendment, when it was first presented to
the Congress, makes it quite clear that it was the right of the
States to maintain a militia that was being preserved, not the
rights of an individual to own a gun…[and] [there is no indication
that Congress altered its purpose to protect state militias, not
individual gun ownership [upon consideration of the Amendment] . . .
. Courts…have viewed the Second Amendment as limited to the militia
and have held that it does not create a personal right to own or use
a gun . . . . In light of the constitutional history, it must be
considered as settled that there is no personal constitutional
right, under the Second Amendment, to own or to use a gun. Letter
from Mary C. Lawton, Deputy Assistant Attorney General, Office of
Legal Counsel, to George Bush, Chairman, Republican National
Committee (July 19, 1973) (citing, inter alia, Presser v. Illinois,
116 U.S. 252 (1886), and United States v. Miller, 307 U.S. 174
(1939)). See also, e.g., Federal Firearms Act, Hearings before the
Subcommittee to Investigate Juvenile Delinquency of the Committee on
the Judiciary, United States Senate 41 (1965) (Statement of Attorney
General Katzenbach) ("With respect to the second amendment, the
Supreme Court of the United States long ago made it clear that the
amendment did not guarantee to any individuals the right to bear
arms.").

Every claim made in the above paragraph is wrong. Let's start with
"The language of the Second Amendment, when it was first presented to
the Congress." Madison's original language for the Second Amendment
was: "The right of the people to keep and bear arms shall not be
infringed; a well armed and well-regulated militia being the best
security of a free country; but no person religiously scrupulous of
bearing arms shall be compelled to render military service in person."

As
with the Fifth Amendment (covering, in the original, a ban on multiple
punishments and trials, a ban on self-incrimination, a guarantee of
due process, and a requirement of just compensation for the taking of
property), Madison covered several topics in his proposed Second
Amendment. That Congress took out the language about conscientious
objectors serving in the militia does not, the DOJ admits, change the
meaning of the rest of the Second Amendment.

Madison's proposal used exactly the same language — "right of the
people" — to guarantee a personal right to arms as he did the right to
assembly and the right to protection from unreasonable searches.

The invocation of the militia and the security of a free state was
what UCLA law professor
Eugene Volokh
calls a "
"purpose clause" — a common technique in constitutional drafting
at the time, and for decades after. For example, the New Hampshire
constitution declared: "Economy being a most essential virtue in all
states, especially in a young one; no pension shall be granted, but in
consideration of actual services, and such pensions ought to be
granted with great caution, by the legislature, and never for more
than one year at a time."

This provision makes all pensions of longer than one year at a time
void — even if the state is no longer "a young one" and no longer in
need of economy. Volokh supplies dozens of similar examples from other
state constitutions. Thus, whatever one thinks about what a militia is
and how it contributes to the security of a free state, the operative,
main clause of the Second Amendment remains intact. Madison, after
all, specified that "the right to keep and bear arms" belongs to the
"the people," not only to "the militia."

Notably, Madison's original structure of the Bill of Rights did not
place the amendments together at the end of the text of the
Constitution (the way they were ultimately organized). Rather, he
proposed interpolating each amendment into the main text of the
Constitution, following the provision to which it pertained. If he had
intended the Second Amendment to be mainly a limit on the power of the
federal government to interfere with state-government militias, he
would have put it after Article 1, section 8, which granted Congress
the power to call forth the militia to repel invasion, suppress
insurrection, and enforce the laws; and to provide for organizing,
arming, and disciplining the militia. Instead, Madison put the
right-to-bear-arms amendment (along with the freedom of speech
amendment) in Article I, section 9 — the section that guaranteed
individual rights, such as habeas corpus).

Madison's notes for his speech in Congress introducing the Bill of
Rights explained that the proposals were to deal with the "omission of
guards in favr. of rights & libertys." His amendments "relate 1st. to
private rights." A Bill of Rights was "useful — not essential." There
was a "fallacy on both sides — especy as to English Decln. of Rts."
(The 1689 Declaration of Rights which had been adopted by Parliament
in England.)

Like many other Americans, Madison believed the English Declaration
was too narrow; it omitted certain rights and protected others too
narrowly. In particular, there was "no freedom of press — Conscience."
There was no prohibition on "Gl. Warrants" (general warrants) and no
protection for "Habs. corpus."

Nor was there a guarantee of "jury in Civil Causes" or a ban on
"criml. attainders." (Bills of Attainder.)

Lastly, the Declaration protected only "arms to Protestts." —
apparently too narrow a slice of population for Madison — especially
considering his hostility to religious discrimination. (The 1689
English Bill of Rights guaranteed "That the subjects which are
Protestants may have Arms for their Defence suitable to their
Conditions, and as allowed by Law." Protestants comprised almost the
entire population at the time.)

The 2000 DOJ letter cites the 1973 DOJ for the proposition that
"Courts…have viewed the Second Amendment as limited to the militia and
have held that it does not create a personal right to own or use a
gun." This statement is not wrong just because of what courts in the
1990s have said. This statement has been wrong since the first days
when courts ruled on the Second Amendment. For example, one of the
first cases was the 1846 case Nunn v. State, in which the
Georgia supreme court unanimously threw out a handgun ban, because it
violated the Second Amendment. What did the Second Amendment comprise?

The right of the whole people, old and young, men, women and boys,
and not militia only, to keep and bear arms of every
description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in
upon, in the smallest degree; and all this for the important end to
be attained: the rearing up and qualifying a well-regulated militia,
so vitally necessary to the security of a free State. Our opinion
is, that any law, State or Federal, is repugnant to the
Constitution, and void, which contravenes this right,
originally belonging to our forefathers, trampled under foot by
Charles I. and his two wicked sons and successors, re-established by
the revolution of 1688, conveyed to this land of liberty by the
colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin,
Sandusky, and the laurel-crowned field of New Orleans plead
eloquently for this interpretation! And the acquisition of Texas may
be considered the full fruits of this great constitutional right.

The 2000 DOJ letter also quotes the 1973 letter's citation of the 1886
Supreme Court case United States v. Presser. There, the
Court held that the Second Amendment was a limit only on the federal
government, not the states, and therefore did not prevent the state of
Illinois from regulating armed parades in public. Presser is a
reasonable (although rather old) case for gun-control advocates to
cite for the theory that the Second Amendment does not limit state gun control. (Almost all states have their own state constitutional
right to arms.) But there is nothing in Presser which claims
that the Second Amendment right to arms belongs only to state
governments, and not to the people.

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